Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD - [2016] NSWSC 1926

Supreme Court

New South Wales

Medium Neutral Citation: Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926
Hearing dates: 24, 25, 26 October, 9 November 2016
Date of orders: 21 November 2016
Decision date: 21 November 2016
Jurisdiction: Common Law
Before: Sackar J
Decision:
See paragraph [391]

Catchwords: EQUITY – adoption – whether adoption by the proposed applicants will promote the welfare of the child – whether dispensing with the birth parents’ consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action that could be taken by law in relation to their care – whether the Paternal and Maternal Adoption Plans should be registered – whether the court should order the child’s surname to be changed
Legislation Cited: Adoption Act 2000 (NSW)
Adoption Amendment (Same Sex Couples) Act 2010 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of SVS [2015] NSWSC 2043
Application of A - re D [2006] NSWSC 1056
Application of A; Re D (2006) 36 Fam LR 142
Deputy of Community Services v D (2007) 37 Fam LR 595
DFaCS (NSW) and Abbey [2013] NSWChC 3
Director-General, Dept of Community Services v D & Ors (2007) 37 Fam LR 595; [2007] NSWSC 762
Re Adoption of RCC [2015] NSWSC 813
Re H (Adoption: Parental Agreement) (1982) 3 FLR 386
Re JLR [2015] NSWSC 926
Re O (Contact: Imposition of conditions) [1995] 2 FLR 124
Re: William and Jane [2010] NSWSC 1435
W (A Child) [2016] EWCA Civ 793
Category: Principal judgment
Parties: Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia (plaintiff)
H R (first defendant)
C D (second defendant)
Representation:
Counsel:
T Stevens (plaintiff)
C Sperling (first defendant)
Self-represented (second defendant)
Solicitors:
Crown Solicitor’s Office (plaintiff)
Self-represented (second defendant)

File Number(s): A87 of 2015
Publication restriction: anonymised for publishing

Judgment

Nature of the proceedings

By way of Further Amended Summons dated 9 November 2016, the plaintiff seeks orders under the Adoption Act 2000 (Cth) (‘Adoption Act’) in relation to the child, CJD.
CJD is a female born 1 May 2012 and currently 4 years old. She is now in the parental responsibility of the Minister for Family and Community Services pursuant to orders of the New South Wales Children’s Court.
Ms Vihtonen is the plaintiff, the principal officer of Barnados Australia (‘Barnados’) and a delegate of the Secretary of the NSW Department of Family and Community Services under section 206(2) of the Adoption Act. Under section 206(2)(a), Ms Vihtonen may be conferred with any of the functions delegated to the Secretary by the Minister, or, under section 206(2)(b), any of the Secretary’s other functions under the Adoption Act or the regulations. Pursuant to this section, Ms Vihtonen may be given all of the powers of the Secretary. The most notable of these powers are listed in section 10 of the Adoption Act, giving Ms Vihtonen the ability to make the present application for orders to be made for CJD’s adoption. They also, by virtue of section 91 of the Adoption Act, require Ms Vihtonen to produce a written report concerning CJD’s adoption before a court can make the proposed orders. Ms Vihtonen has provided this report to the court for the purpose of these proceedings.
CJD’s birth parents are HR (‘birth mother’) born on 5 October 1980 and CD (‘birth father’) born on 9 April 1986. They both oppose the proposed adoption.
CJD has lived with the proposed adoptive parents JLL and KGH (‘adoptive parents’) continuously since 9 September 2013.

Factual background

On 10 July 2004, the birth mother gave birth to her first child, JR (CB 12). On 16 January 2005, JR died at the age of 7 months and the birth mother was charged with manslaughter. On 23 October 2006, the birth mother was arraigned before a jury, which eventually found her guilty of that offence.
In passing sentence, the presiding judge Howie J determined that JR’s cause of death was “methadone and benzodiazepine toxicity with methamphetamine a possible contributory factor”: the remarks on sentence in the Supreme Court . The judge sentenced her to four and a half years imprisonment, with three years non-parole. The judge further noted that the birth mother displayed “insufficient concern for the child’s safety. For example, there was evidence of her driving a motor vehicle with the child lying unprotected in the well of the front passenger’s side of the vehicle. She delayed having the child immunised”. He went on to state at [8]:

“Nor was the offender a particularly reliable witness. She did not give evidence at the trial but had engaged in a lengthy formal interview with police. She had also participated in a videoed interview in a police vehicle retracing her steps on the night the child died and later back at the unit. She told at least one lie in her account of the circumstances leading up to the child’s death: she said that she was driven to premises where she sought help for the child when it was clear that she was the driver. This may have been because she was concerned about driving a motor vehicle without a licence, but she persisted in the lie and embellished it in a way that destroys her general credit. She denied giving any illegal drugs to the child but I am satisfied beyond reasonable doubt that she did.”

However, his Honour also explained at [24] that “the evidence is all one way that she loved the child and was distraught at his death. It is difficult to find that there is any contrition for causing his death because she does not accept that she did,” and at [5] that “there was no evidence of the offender ever mistreating the child and to the best of her ability she was a caring and loving mother”.
In October 2008, the birth mother was released on parole (CB 623), but in June 2009 was returned to prison for breaching the conditions of her parole by consuming illicit drugs, being “around a child under the age of 16” and “driving a vehicle without a licence” (T 127; CB 623).
In June 2010, the birth mother was again released from prison and in September 2011, commenced a relationship with the birth father (CB 623).
On 1 May 2012, CJD was born, with evidence of methadone in her urinary and meconium drug screen (CB 13, 44). She was also monitored for neo-natal abstinence syndrome (CB 13, 44).
On 4 May 2012, CJD was assumed into the care of the Minister and placed with short term carers because of the Minister’s concerns about the birth mother’s long history of poly-drug use, limited insight into JR’s death, lack of demonstrated change in her drug use and concerns about the birth father’s mental health (CB 13).
On 31 May 2012, the New South Wales Children’s Court found that CJD was in need of care and protection pursuant to section 71(1)(d) and 71(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (CB 13).
In August 2012, the Children’s Court clinician proposed that CJD be restored to her birth parents’ care and filed a care plan supporting restoration to the birth mother in two years, with supervision and undertakings (CB 14, 352). However, Community Services became aware of the birth mother’s continued use of benzodiazepines on 2 January 2013 and on 19 January 2013, revised the care plan to propose that parental responsibility be allocated to the Minister (CB 14, 374, 433).
In January 2013, the birth parents separated (CB 514).
In March 2013, the birth father sought restoration in the Children’s Court (CB 514) after the birth mother conceded that there was no realistic possibility of restoration of CJD to her: DFaCS (NSW) and Abbey [2013] NSWChC 3 at [7]. On 19 July 2013, the Children’s Court gave judgment and made final, long term orders for parental responsibility to be allocated to the Minister (CB 577). In making these orders, the President of the Children’s Court, Judge Johnstone commented in DFaCS (NSW) and Abbey [2013] NSWChC 3 at [110]-[124]:

“[110] I was surprised in the present case that consideration was ever given to any restoration to the mother so soon after her release from prison for her involvement in the death of her other child, James, and given her long history of drug dependence and the shortness of the period of claimed abstinence from drugs of addiction. Her conduct subsequent to her release to parole, and since her final release, all serves to create ongoing doubts as to the sincerity of the mother and the true extent of her asserted abstinence, and as to the potential for her to relapse.
[111] The mother's continuing drug use after release, her behaviour surrounding drug testing, the subsequent discoveries by the Department surrounding the obtaining of the prescription for benzodiazepines, and the deceit that entailed, including the failure to disclose the fact to the Department despite the existence of the Care Plan, her subsequent consumption of the drug and the nature of the excuse proffered for doing so, are but circumstances that merely confirm the ongoing risks inherent in drug dependence and the deceitful behaviour it drives. The Department's change of position in relation to restoration was in the circumstances predictable and inevitable.
[112] Both parents have underplayed and sought to minimise the significance of James's death, and the extent of the mother's role in it. This has also caused me considerable concern.
[113] Even on the most benign interpretation of the mother's involvement in the death of her son, James, that death gives rise to heightened concerns in the making of any assessment of risk posed by the mother to Abbey. For my part, however, I do not accept the mother's version of the level of her involvement. Her credibility about the events on that fateful day is totally lacking. Firstly, there are the various discrepancies in her accounts of the events, both in the ensuing days, and over time. Second, the inherent logic of those events is such that huge question marks remain.
[114] I agree with the submissions that it is not necessary to conclusively determine, on the balance of probabilities, that the mother did administer the methadone that killed James. It is sufficient, however, for that to exist as a scenario, against which the assessment of future risk must be measured.
[115] The suddenness of the separation of the parents also gives rise to factors relevant to the risk of harm to Abbey. This is exacerbated by the contradictory nature of the respective versions given by those parents as to the true nature of the separation, such that it may well be asked whether it was a device to enhance the restoration of Abbey to the father, as an interim measure, pending a future s 90 application. Whether and to what extent the separation of the parents is genuine, the very fact of the separation, and the timing of it must be viewed with concern, such that it becomes another factor in the risk assessment. In short, the mother continues to present an unacceptable risk of harm to Abbey, and the separation does very little to alleviate that risk.
[116] Nor, in my view, does this father have the capacity to parent Abbey on his own. If it was perceived that a realistic possibility of him being able to do so existed, it was only ever in the context of an ongoing relationship with the mother, with her presence and support making up for his demonstrated deficiencies and shortcomings. His nominated supports are illusory and inadequate, insufficient to compensate for his failings.
[117] I don't for one moment doubt the father's desire, and the sincerity of that desire, to care for Abbey. She is his only child. The evidence does not conclusively define whether her birth was a planned event, at least on his part, or not, but having become a father, he genuinely wants to bring her up. Having regard, however, to the totality of the evidence, I agree with the submissions of the Independent Legal Representative that the father simply does not possess the wherewithal to do so in a way that would sufficiently provide for Abbey's safety, welfare and well-being.
[118] The father has ongoing mental health issues, which appear to be under control, but which exist, combined with demonstrated learning difficulties. His shortcomings in relation to comprehension were, if I may say so, totally evident from his presentation in the witness box, but confirmed in greater detail from more extended observation by the Clinician.
[119] Furthermore, in my view, the father would be completely inadequate as a gatekeeper when it comes to the risk posed by the mother to Abbey.
[120] I gave the father an abundance of opportunity to overcome the Department's evidence on this issue, but when he gave his "heart of hearts" evidence, I was comfortably satisfied that he just can't bring himself to accept that the mother presents any unacceptable risk to Abbey, notwithstanding what happened to James. This, of itself, gives rise to an unacceptable risk of harm to Abbey.
[121] This is, in the end, a case where the possibility of restoration has been inaptly confused with the mere hope that the father's situation may improve. There is no reality surrounding the possibility of a restoration to him, and any such possibility is unrealistic and sentimental, based on what I view as unlikely hopes for the future.
[122] I find, therefore, that the father is unlikely to be able to satisfactorily address the issues that led to the removal of the child.
[123] I am also comfortably satisfied that the circumstances of the child are such that restoration to the father is contra-indicated. The risk associated with a restoration to the father supports that proposition.
[124] The mother has conceded there is no realistic possibility of restoration to her, and I accept the assessment of the Director-General in that regard. I also comfortably accept the assessment of the Director-General that there is no realistic possibility of restoration to the father.”

On 19 September 2013, at six months old, CJD was placed with the adoptive parents. They are a same sex couple.
In March 2015, CJD was referred to a psychologist because of an escalation in her “challenging behaviours” (CB 19). In May 2015, a behaviour plan was created for CJD to manage these challenging behaviours (CB 20). In June 2015, CJD moved to A Family Day Care and her behaviour improved (CB 21).
On 28 August 2015, the birth parents were served with notices of CJD’s adoption and refused to accept service (CB 667-668).
In October 2015, CJD’s challenging behaviours continued and she continued to receive support from a child psychologist (CB 664).
In January 2016, CJD moved with her proposed adoptive parents to Wollongong (CB 665).
On 3 March 2016, expert psychologist Ms S interviewed all the relevant parties and met CJD at a contact visit for the purposes of preparing a report for use in these proceedings (CB 667).
During March 2016, CJD and the proposed adoptive parents also met with Ms BD, a psychologist in Wollongong (CB 666).
In July 2016, another expert psychologist, Ms RN, met with the birth mother so as to prepare a report to be used by her in these proceedings.
Between 29 July 2013 and 23 December 2015, there were numerous contact visits between CJD, her birth parents and/or her grandparents (CB 26, 29, 667).
On 4 February 2016, a preliminary hearing was conducted in the New South Wales Supreme Court by Justice Kunc.
The matter was initially listed for five days commencing 18 July 2016. However, the parties appeared before me on 13 July 2016 and informed me that Legal Aid had been withdrawn from both birth parents. I then vacated the initial hearing dates and stood the matter over until the week commencing 24 October 2016, to give the birth parents an opportunity to obtain legal representation and, or, assistance. The birth mother was able to obtain legal representation for the hearing, while the birth father was given legal assistance prior to the hearing, but was unrepresented during it.

Orders sought

The plaintiff seeks numerous orders. First, an order that the birth parents’ consent be dispensed with under section 67(1)(d) of the Adoption Act 2000 (Cth). Secondly, that an order be made for the adoption of CJD in favour of the adopting parents. Thirdly, that the surname “H-L” be the surname of CJD. Fourthly, that both the Maternal and Paternal Adoption Plans dated 26 October 2016 be registered under section 50(3) of the Adoption Act 2000 (Cth). I note that these Adoption Plans were modified by the plaintiff on the 26 October 2016 (with minor amendment again on 9 November 2016), to encourage a greater degree of communication between the birth parents and proposed adoptive parents.

Issues in dispute

These proceedings give rise to a number of distinct issues:

Whether adoption by the adoptive parents should be ordered;

In the alternative whether CJD should be restored to the care of the birth mother;

Further and in the alternative whether CJD should be restored to the care of the birth father;

If the order in (1) above is to be made whether dispensing with the birth mother and birth father’s consent is appropriate;

If the order in (1) above is to be made whether the proposed name change is in CJD’s best interests;

Again if the order in (1) above is to be made whether the proposed arrangements in the Paternal and Maternal Adoption Plans as modified, particularly the arrangements for contact with the birth parents, are in CJD’s best interests and proper in the circumstances, and should be registered accordingly;

If the orders sought in (1), (2) and/or (3) above are not made, whether some other order is appropriate.

Legal principles and legislative framework

The objects of the Adoption Act 2000 are found in section 7 and relevantly include:

To emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice: s 7(a);

To make it clear that adoption is to be regarded as a service for the child concerned: s 7(b);

To ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage: s 7(c);

To recognise the changing nature of practices of adoption: s 7(d).

Section 8(1) requires that, as far as is practicable or appropriate, when making a decision about the adoption of a child, a decision maker is to have regard to the principles specified at s (8)(1)(a) – (g) including, relevantly:

the best interests of the child, both in childhood and in later life, must be the paramount consideration,

adoption is to be regarded as a service for the child,

no adult has a right to adopt the child,

the child’s given name or names, identity, language and cultural and religious ties should as far as possible, be identified and preserved

undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare.

Section 8(2) requires the Court to have regard to the principles at s 8(2)(a) – (k) when determining the best interest of the child, namely:

Any wishes expressed by the child,

The child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

The child’s physical, emotional and educational needs, including the child’s sense of persona, family and cultural identity,

Any disability that the child has,

Any wishes expressed by either or both of the parents of the child,

The relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

The attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

The nature of the relationship of the child with each proposed adoptive parent,

The sustainability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

The need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

The alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption is determined among all alternative forms of care to best meet the needs of the child.

Where a birth parent does not give consent to the adoption of the child, s 67(1)(d) allows the Court to make a ‘consent dispense’ order if:

An application has been made for the adoption of the child by authorised carers with whom the child has established a stable relationship; and

Where the adoption of the child by those carers will promote the child’s welfare.

Section 67(2) prevents the Court from making a ‘consent dispense’ order unless satisfied that to do so is in the best interests of the child.
Section 90 requires the Court to be satisfied as to certain matters before making an adoption order. In the present case, the relevant considerations pursuant to s 90(1) are:

That the best interests of the child will be promoted by the adoption, and

That, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and

If the prospective adoptive parent or parents are persons other than a step parent or relative of the child that the prospective adoptive parent or parents have been selected in accordance with this Act, and

That consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been or should be, dispensed with, and

In the case of a child (other than an Aboriginal or Torres Strait Islander child) – that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

Section 90(2) provides that the Court may not make an adoption order if the parties to the adoption have agreed to any adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.
Section 90(3) provides that the court may not make an adoption order unless it considers that the making of the order would be “clearly preferable” in the best interests of the child than any other action that could be taken by law in relation to the care of the child.
The expression “clearly preferable” indicates that s 90(3) requires “something more than a slight preponderance of consideration in favour of adoption over the alternatives”. It does not require satisfaction “beyond reasonable doubt”. The word ‘clearly’ serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision: Re JLR [2015] NSWSC 926 at [99] (per Bergin CJ in Eq); Application of A; Re D (2006) 36 Fam LR 142 at [53] (per Palmer J). It requires that adoption be “obviously, plainly or manifestly preferable to any other action that could be taken by law”: Deputy of Community Services vD (2007) 37 Fam LR 595 at [25].
In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to section 8 at [12]-[17]:

“[12] It is worth recording that these inquiries are concerned much more with the future than with the past: at their core is the best interests and welfare of the child, now and in the future, and not the rights or wrongs of past conduct and decisions - whether of the birth parents, the adoptive parents or the Department.
[13] In making decisions about adoption, the court must apply the principles listed in Adoption Act, s 8(1) …
[14] In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.
[15] Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]].
[16] The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:
-   Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;
-   Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and
-   Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.

[17] In addition, all these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption.”

His Honour went on to explain:

“[74] Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are:
•   restoring the child to the care of the birth mother;
•   allocating parental responsibility in favour of the applicants;
•   maintaining the status quo, with the Minister having parental responsibility and the child in foster care; and
•   deferring determination of the question until the child is older, either maintaining the status quo or making a parental responsibility order in the meantime.”

…
[83] Once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the child is vested in the adoptive parents. Because of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court would not likely make an adoption order if there were a realistic prospect of the child being restored to the care of one or both of his birth parents. However, if there is no real prospect of restoration, then the disadvantages of the permanent nature of an adoption order are minimal, and no greater than those of natural legal parenthood; and the advantages of permanency are considerable. Future contingencies in relation to contact can still be addressed and accommodated after an adoption order is made [Re TVK [2012] NSWSC 1629].
[84] The starting point for consideration of whether there is a realistic prospect of restoration is that there is in place an order of the Children's Court allocating parental responsibility to the Minister until the child attains 18 years of age. Implicit in that order is a conclusion that restoration is improbable. That conclusion does not bind this court, and between the time when a care order is made in the Children's Court, and an adoption application is considered in this court, much can change. The Children and Young Persons (Care and Protection) Act 1998 (NSW) itself admits, by s 90, of an application for restoration (by way of rescission of the care order) in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place. Nonetheless, in this type of case, there has already been a judicial decision, by a specialist court, that the child cannot be satisfactorily cared for by the birth parents, such as to require long-term removal.”

I also note the pertinent remarks of Sir Thomas Bingham MR in Re O (Contact: Imposition of conditions) [1995] 2 FLR 124, who stated that “the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems”.

Dispensing with the consent of the birth parents

In Re Adoption of RCC [2015] NSWSC 813, Brereton J stated:

“[11] … It is not the role of this Court in these proceedings to review the decisions that have been made by the Children's Court in respect of parental responsibility; nor even to determine whether in the different circumstances that prevail today such an order would still have been made; but rather to judge which of the competing proposals (and any viable alternatives) will best serve the interests of these children now and in the future, given what has already happened.
…
[17] … Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] - endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] - the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child's present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child.” (see also Adoption of NG (No 2) [2014] NSWSC 680 at [105] and Adoption of RCC and RZA [2015] NSWSC 813 at [17])

Adoption as opposed to restoration or other order

Brereton J explained in Adoption of BS (No 3) [2013] NSWSC 2033:

“[24] A clear sense of identity is an important life foundation for children, and this is particularly so against an early background of ambiguity or instability.
…
[28] Security and stability are also important life foundations for children, all the more so against an early background of instability.”

Relevantly, Brereton J said in Adoption of SVS [2015] NSWSC 2043 at [25]-[28]:

“[25] Consideration of this question, as usual, commences with the generalities. The best resort the Court can have to understand the respective benefits of long term foster care and adoption is to what the social science, soft as it may be, tells us, and it was deployed in this case through the evidence of the parties’ single expert Jenny Howell, forensic psychologist. She referred to the works of Triseliotis and of Bohman & Sigvardsson, which are commonly referred to in this area, and said:
Research examining outcomes connected to adoption and long term fostering found as the key differences between the two forms of substitute parenting high levels of emotional security and the sense of belonging and general wellbeing in children who were adopted (T riseliotis 2002).
Attention has been drawn to the sometimes ambiguous position of children in long term foster care, suggesting that, unlike adoption, many children in long term care feel unusually insecure and lack a strong sense of belonging (Bohman and Sigvardsson 1990).

[26] Studies have identified that the insecurities were concentrated in two areas: anxiety and uncertainty on the part of the child and carers due to the impermanence of their position, and the lack of certainty in their position.
[27] The practical effect of adoption in a case such as the present is to perfect the child's membership of the family of which in every other sense she is a member, and which is essentially the only family she has ever known. It brings the legal relationship of parentage into conformity with the reality of the situation. It also means that the child becomes a child of the adoptive parents, not just until she attains 18 years of age, but for life. It confirms her identification with the family with which she lives and which she sees emotionally and psychologically, as well as physically, as her family. It ends her status as a ward of the Minister and means that she is no longer in "out-of-home care" but in "in home care". It removes any residual doubts, remote as they may be, as to the future security of her placement.
[28] On the negative side, adoption severs the legal relationship with her birth family. But it has to be said that that has been a very limited relationship. She has had no relationship, so to speak, with her birth father, whose surname she bears. Her relationship with her birth mother has been limited to occasions of contact. Severing the legal relationship will not sever the biological relationship, nor will it detract from the potential for developing a meaningful relationship through ongoing contact. In terms of developing and sustaining a relationship between SVS and KF, I do not see that adoption has significant detriment as distinct from the status quo.”

In Application of A - re D [2006] NSWSC 1056, Palmer J explained at [47]-[51]:

“[47] It would be inappropriate for the Court, by undertaking a review of the literature in the field of child psychology and adoption, to come to the view that, as a general rule, adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. When the Court comes to the consideration required of it by s.8(2)(k) and s.90(3), no general rule can be applied. The Adoption Act regulates adoptions in a very wide range of different circumstances: an orphaned infant from Korea; a baby abandoned by parents incapable of caring for it; a teenager removed from abusive parents; a married adult wishing to be adopted by a step-parent.
[48] The choice between long-term fostering as an alternative to adoption will, by definition, arise where the child is fairly young. Even so, the age of the child in itself will inevitably give rise to different considerations in different circumstances. The case of a baby some months old, or a child under the age of two, with no possibility of ever being returned to its parents, is very different from the case of a ten year old who has a real prospect of returning to parental care; what a child has experienced before coming into foster care may have a considerable impact on the child’s need for future stability and security.
[49] For these reasons, s.8(2) emphasises that the Court must have close regard to the particular circumstances of each case in order to assess whether the child’s interests are best served by an adoption order or some other form of care: s.8(2)(k).
[50] Research, and the literature in child psychology, confirm ordinary human experience: in order to attain normal, healthy, emotional, intellectual and physical development, children need to feel stable and secure in a nurturing environment, and they need to feel a sense of identity and belonging within their family and in their community. Human experience also tells us that we very often identify ourselves, both to ourselves and in our community, by reference to who and what the State says we are. We are treated as citizens if we have a passport; we are regarded as capable of driving a car if we have a driving licence; we are identified as the children of those persons whose names appear as our parents on our birth certificates.
[51] I do not intend to suggest that learned literature in the field of child psychology has no value in the courtroom in adoption cases. However, the results of research are often disputed and open to different interpretations. In the end, decisions in adoption cases as to what form of care is in a child’s best interests are intuitive, founded on the Judge’s impression of the particular facts of the case formed in the light of the Judge’s experience of life.”

In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J discussed the possibility of restoration and its importance at [69]-[72]:

“[69]…[B]ecause of the permanency of an adoption order, and the general preference based in human nature and experience that, where practicable, children are best raised by their birth parents, the Court must in any event consider that once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the children is vested in the adoptive parents. However, although I have previously suggested that the Court would not likely make an adoption order if there were a realistic prospect of restoration [see, for example, Adoption of NG (No 2) [2014] NSWSC 680, [83]], on reflection that overstates the position, which is more accurately stated as that the Court would not make an adoption order unless satisfied that the advantages of adoption clearly outweighed the benefits of preserving the possibility of restoration.

[70] The concept of a “reasonable possibility of restoration” is one derived from the Care and Protection Act, s 83(1), which provides that on an application for a care order, the Secretary must assess whether there is a realistic possibility of a child being restored to his or her parents, having regard to the circumstances of the child and the evidence that the parents are likely to be able to satisfactorily address the issues that have led to the child’s removal. In In the matter of Campbell [2011] NSWSC 761, Slattery J (at [55]ff) explained that a possibility involved something less than a probability – that is, something that is not impossible; and that to be realistic, it had to be real or practical - not fanciful, sentimental or idealistic or based upon “unlikely hopes for the future”.
[71] There is no equivalent statutory concept in the Adoption Act. Moreover, in a case such as the present, there will already be in place an order of the Children’s Court allocating parental responsibility to the Minister until the children attain 18 years of age, implicit in which is a conclusion that restoration is not a realistic possibility. While that conclusion does not bind this court - and between the time when a care order is made in the Children’s Court, and an adoption application is considered in this court, much can change (indeed, the Care and Protection Act itself admits, by s 90, of an application for restoration, by way of rescission of the care order, in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place) - nonetheless, there will have already been a judicial decision, by a specialist court, that the children cannot be satisfactorily cared for by the birth parents, such as to require long-term removal, and that restoration is not a realistic possibility.
[72] If this Court were satisfied that restoration, now or in the future, was in the best interests of the children, it could not be satisfied that adoption was “clearly preferable”. But short of such a conclusion, while the Court should take into account, on the one hand, that an adoption order would practically preclude the possibility of restoration, that must be weighed on the other against any disadvantages of preserving that prospect, and the advantages of adoption. Typically, countervailing considerations will include the undesirability of uncertainty and associated instability and insecurity, the risks associated with disturbing an established and functional status quo, and the relative parenting capacities of the birth parents and the adoptive parents.”

Courts in the United Kingdom have taken a similar stance. In Re H (Adoption: Parental Agreement) (1982) 3 FLR 386, Lord Justice Ormrod, speaking for the Court of Appeal, asked rhetorically at 388:

“…..
‘What do the adoptive parents gain by an adoption order over and above what they have already got on a long term fostering basis?’ To that answer is always the same – and it is always a good one – adoption gives us total security and makes the child part of our family, and places us in parental control of the child; long-term fostering leaves us exposed to changes of view of the local authority, it leaves us exposed to applications, and so on, by the natural parent. That is a perfectly sensible and reasonable approach; it is far from being only an emotive one.”

Again, most recently in W (A Child) [2016] EWCA Civ 793, Lord Justice McFarlane, speaking with agreement of the other two members of the Court of Appeal, stated at [64]:

“One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters.”

The appropriate name of the child

In relation to the change of a child’s surname, Brereton J observed in Adoption of RCC and RZA [2015] NSWSC 813 at [104], re-iterating his own comments in Adoption of NG (No 2) [2014] NSWSC 680 at [109] and Adoption at BS (No 3) [2013] NSWSC 2033 at [86]:

“Adoption Act, s 101, relevantly provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes. The Court must not approve a change in the given name or names of a child who is more than one year old unless the Court is satisfied that the name change is in the best interests of the child. The adoption principles set out in s 8 include, in (e), the principle that a child's given name or names, and identity, should, as far as possible, be preserved.”

At [105], Brereton J went on to explain:

“Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of “belonging” that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. The proposed surname P accords with this approach, and will recognise the children’s place in the adoptive family and reinforce their sense of permanency and belonging, in that they will be in name as well as in law a member of the adoptive family. Moreover, the children have expressed a wish to have the surname P.”

Brereton J had earlier observed to similar effect in Adoption at BS (No 3) [2013] at [89]:

“In my view, the prima facie position, reflected in the reference in s 101(1)(b) to "on the application of the adoptive parent or parents", is once it is determined to make an adoption order, priority is given to the wishes of the adoptive parents, so long as they are not inconsistent with the interests of the child and the adoption principles, although regard must also be had to the wishes of the child. Thus upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child's family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of "belonging" that adoption is intended to nurture, and not to do so would detract from the benefits of adoption.”

Albeit in the context of section 92 and not section 101 of the Adoption Act 2000 (NSW), Brereton J made pertinent comments in relation to the change of a child’s name in Director-General, Dept of Community Services v D & Ors (2007) 37 Fam LR 595; [2007] NSWSC 762 at [258]-[262]:

“[258]…The name of a child is an aspect of parental responsibility. Without any order, the persons having parental responsibility are entitled to change the name of a child. In my view power to make orders with respect to parental responsibility must carry with it power to make orders with respect to the child’s name.
[259] Issues of changing the surname of a child have been considered in a number of cases in the Family Court of Australia [George & Radford (1976) FLC ¶90-060; 1 Fam LR 11,510; Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462; Beach & Stemmler (1979) FLC ¶90-692; Kelley & Kelley (1981) FLC ¶91-002; Skrabl & Leach (1989) FLC ¶92-016; 13 Fam LR 83; and Mahoney & McKenzie (1993) FLC ¶92-408]. Usually, they have arisen in the context of applications for injunctions to restrain one parent from causing or allowing the child to be known by a new name. A convenient summary of the cases and the principles to be extracted from them is to be found in the judgment of Kay and Holden JJ in Flanagan & Handcock (2001) FLC ¶93-074. Relevantly, they establish that the welfare of the child is the paramount consideration, and that the court should have regard to the short and long-term effects of any change in the child’s surname; any embarrassment likely to be experienced by the child if his or her name were different from that of the parent with whom the child resides; any confusion of identity which may arise for the child if his or her name is changed or not changed; the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and the effect of frequent or random changes of name [Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462]. Further considerations include the advantages in the short and long-term of the name remaining unchanged, and the degree of identification that the child has with the various parties [Beach & Stemmler (1979) FLC ¶90-692].
[260] In support of the submission that a change of name should be authorised, it is contended that E will live in the household of Mr and Mrs F who will be responsible for her day to day education, sporting and leisure activities, all of which will require her to be enrolled or registered, such that it would be in her interest to be able to use Mr and Mrs F’s surname. To that might be added that, at present, E more closely identifies with Mr and Mrs F than with D, and that she already uses their surname.
[261] On the other hand, a change in surname will be a further breach in the connection between her and her birth mother and family, and may make it more difficult for her to be accepted by her family of origin.
[262] Names are important to children. They are a significant aspect of their sense of belonging. At least in the short term, E will identify more closely with Mr and Mrs F than with D. She already uses their surname. She will continue to reside with them for the foreseeable future. While the position in the longer term is not so clear, the probabilities are that even then she will identify more with Mr and Mrs F. To change now from their name will be productive of confusion and distress. Retaining E’s present surname as a middle name will preserve the connection with D’s family. In my view, her greater identification in the short term, and probably the longer term, with Mr and Mrs F, the circumstance that she already uses their name, so that from her perspective no “change” would involved, and the undesirability of causing identity confusion at this stage, indicate that Mr and Mrs F should be permitted, in exercise of their parental responsibility for E, to change her surname to their own, provided that if they do so, E’s current surname be retained as her middle name.”

Adoption by same sex couples

In this case, as I have already observed the proposed adoptive parents are a same sex couple.
As a result of the Adoption Amendment (Same Sex Couples) Act 2010 (NSW), the law in New South Wales clearly allows same-sex couples to adopt a child. In the case of Re: William and Jane [2010] NSWSC 1435, Palmer J considered a factually analogous case, where a same-sex, male couple sought orders to adopt two children. Although that case was an uncontested adoption, Palmer J’s comments remain relevant to my determination in the current proceedings. His Honour comprehensively reviewed and discussed the legislative background to the eligibility of same-sex couples to adopt in New South Wales. Bergin CJ in Eq approved his Honour’s remarks in Re JLR [2015] NSWSC 926 at [100]. Although the following quotation is lengthy, I respectfully adopt what Palmer J said at [61]-[78]:

“[61] Section 7 of the Adoption Act states that the first and foremost object of the legislation is “to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice”. In furtherance of this object, s 8(1)(a) of the Act provides that in making a decision about the adoption of a child, the Court is to have regard (as far as is practicable or appropriate) to the principle that the best interests of the child, both in childhood and in later life, must be the paramount consideration.
[62] The Act emphasises that an adoption order is made for the benefit of, and in the interests of, the child and not for the benefit of, or in the interests of, the person seeking to adopt. Section 7(b) provides that amongst the objects of the Act are to make it clear that adoption is to be regarded as a service for the child concerned. Section 8(1)(c) provides:
“(c) no adult has a right to adopt the child …”

[63] I place these considerations at the forefront to emphasise that this case is not about the rights of same sex couples generally nor is it specifically about the rights of homosexual adults to adopt children. That is because adults – whether homosexual or heterosexual, whether married or single – have never had rights to adopt children, as s 8(1)(c) of the Adoption Act makes unequivocally plain.
[64] What the Adoption Amendment (Same Sex Couples) Act 2010 addresses is not rights to adopt, but eligibility to adopt. Before the Amending Act, s 23(1) of the Adoption Act provided that the Court may make an adoption order “solely in favour of one person or jointly in favour of a couple”. The Act said nothing at all about the sex, or sexual orientation, of a single applicant for adoption. Accordingly, a single homosexual man or woman was just as eligible to adopt a child as was a single heterosexual man or woman. Sexual orientation affected eligibility only when the applicants were a “couple”, because “couple” was defined by the Dictionary in the Act as meaning:
“… a man and a woman who:
(a) are married, or
(b) have a de facto relationship.”

[65] “Married” was, and still is, relevantly defined in the Dictionary as “a man and a woman who are actually married”. “Actually married” must mean “validly married in accordance with the laws of Australia”, i.e. validly married in a marriage which is recognised by the Marriage Act 1961 (Cth). Section 5(1) of the Marriage Act defines a marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. To make it clear beyond argument that same sex marriages can, by no means, be regarded as marriages valid under the law of Australia, as it is at present, s 88EA of the Marriage Act expressly forbids recognition of same sex marriages solemnised in other jurisdictions.
[66] Prior to the Amending Act, a same sex couple could never have qualified as a “couple … who are married” within the first limb of the definition of “couple” in the Dictionary. Neither could they have qualified as a “couple … who have a de facto relationship” because the Dictionary definition required the couple to be a man and a woman.
[67] In summary, prior to the passing of the Amending Act, a couple could only adopt if they were living together in an established heterosexual relationship, whether married or unmarried.
[68] The Amending Act did not change the words of s 23(1) Adoption Act but it changed the definition of “couple” in the Dictionary to mean:
“… 2 persons who:
(a) are married to each other, or
(b) are de facto partners of each other.”

[69] “De facto partner” is now defined in s 21C(1) Interpretation Act 1987 (NSW) as follows:
“For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or
(b) the person is in a de facto relationship with the other person.”

“De facto relationship” is defined in s 21C(2) as follows:
“For the purposes of any Act or instrument, a person is in a de facto relationship with another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.”

Section 21C(3) provides:
“’Determination of ‘relationship as a couple’
In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.”

[70] It will be seen that the criteria for assessing a “relationship as a couple” in s 21C(3) Interpretation Act are modelled on what used to be regarded as the normal incidence of a conventional marriage between a man and a woman, even though a “couple” can now include same sex partners.
[71] The new definition of “couple” in the Adoption Act incorporates, by reference, the definition of “de facto partner” in the Interpretation Act, which in turn provides that a couple are de facto partners if they are in a relationship registered under the Relationships Register Act 2010 (NSW) or corresponding legislation in other States. The Relationships Register Act 2010 came into effect on 1 July 2010. That Act provides only for the legal recognition of relationships, heterosexual or same sex, and does not set out the legal consequences of registration. Those consequences are to be found in other legislation such as, indirectly, the Adoption Act.
[72] The registration of relationships under the Relationships Register Act is effected by the Registrar of Births, Deaths and Marriages by registration under Pt 8 of the Births, Deaths and Marriages Registration Act 1995 (NSW). Section 5 of the Relationships Register Act specifies those eligible to apply for registration:
“(1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship.
(2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.
(3) A relationship cannot be registered if:
(a) either adult is married, or
(b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or
(c) either adult is in a relationship as a couple with another person, or
(d) the adults are related by family.”

[73] Section 6 of the Relationships Register Act sets out the criteria by which the Registrar is to determine whether a relationship can be registered:
“An application for registration of a relationship is to be made in the form approved by the Registrar and must be accompanied by the following:
(a) a statutory declaration by each person in the relationship stating the following:
(i) that the person wishes to register the relationship,
(ii) that the person is in a relationship as a couple with the other person,
(iii) that the person is not married,
(iv) that the person is not registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship,
(v) that the person is not in a relationship as a couple with a person other than the other applicant,
(vi) that the person does or does not reside in New South Wales,
(vii) that the person is not related to the other applicant by family.”

[74] Section 6(a)(ii) requires evidence that the applicants for registration are “in a relationship as a couple”, i.e. that they are eligible to apply for registration under s 5(1). The phrase “in a relationship as a couple” is not defined in the Relationships Register Act but it appears in s 21C(3) Interpretation Act, set out above. There is no reason to suppose that the phrase has a different meaning in each Act.

[75] Section 7 of the Relationships Register Act empowers the Registrar to require the applicants for registration to provide “any further information that the Registrar requires to determine the application”. By this means the Registrar is empowered to investigate the truth of the assertions in the applicants’ Statutory Declarations that they are in “a relationship as a couple”, ascertained by reference to the criteria set out in s 21C(3) Interpretation Act.
[76] While persons who are in a de facto relationship, as defined by s 21C Interpretation Act, and persons who are in a registered relationship, as defined in the Relationships Register Act, may be in a heterosexual or same sex relationship with each other, there are significant differences between the two legal categories of relationship. A couple in a de facto relationship may include a partner who is, at the same time, legally married to a third person in a heterosexual relationship or is in a heterosexual or same sex registered relationship with a third person: s 21C(2) Interpretation Act. On the other hand, a party to a registered relationship under the Relationships Register Act cannot be legally married to a third party or living in a registered relationship with a third party or living in a de facto relationship with a third party. While the criteria for the two categories of relationship overlap to some extent, the requirements for a registered relationship are more restrictive than those for a de facto relationship.
[77] To summarise, as the law in New South Wales presently stands, the following people are eligible to adopt a child:
– a single person of either sex, regardless of sexual orientation;
– a man and a women whose marriage to each other is recognised as valid under the Marriage Act ;
– a man and a woman who are not married to each other but who are in a registered relationship;
– a man and a woman who are in a de facto relationship with each other, even if one them is still married to a third party or is still in a registered relationship with a third party, whether heterosexual or homosexual;
– a same sex couple who are in a registered relationship;
– a same sex couple who are in a de facto relationship with each other, even if one of them is still married to a third party or is still in a registered relationship with a third party, whether heterosexual or homosexual.

[78] It hardly needs to be said that fulfilling the criteria in the legislation for eligibility as an adoptive parent is by no means the same thing as fulfilling the criteria for suitability as an adoptive parent. In considering whether an adoption order should be made in favour of a person or couple eligible to adopt, the Court applies the criteria laid down by the Adoption Act, all of which are concerned with the best interests of the child and not with vindication of the aspirations of the applicant for adoption.”

His Honour also relevantly stated at [100]-[106]:

“[100] I cannot pretend to be oblivious to the fact that many in the community have expressed, and continue to express, a strongly-held belief that adoption by same sex couples is, in its very nature, contrary to religion, to morality and to the best interests of the child, and that it undermines the long-established concept of the nature of a family. This ideological debate is not, however, the concern of this Court in deciding adoption cases because Parliament has now resolved the issue by enacting that same sex couples are lawfully eligible to adopt children.
[101] Nevertheless, the Court must be conscious that, perhaps for some little time to come, a significant proportion of the community will continue to regard as an oddity a child who, purely as a matter of legal construction, has two mothers and no father or two fathers and no mother. Should the Court take this circumstance into consideration in determining whether adoption by a same sex couple is in the best interests of the child? Should the Court apply any special test to adoptions by same sex couples?
[102] Some would say that to apply a special test in same sex adoptions is to discriminate unlawfully against persons of a particular orientation, so that the Court should take no account at all of whether the adoptive parents are a married couple, an unmarried heterosexual couple or a same sex couple. In the context of the policy of the Anti-Discrimination Act 1977 (NSW), this view is perfectly understandable.
[103] However, the policy of the Adoption Act is not subordinated to the policy of the Anti-Discrimination Act. On the contrary, the Adoption Act requires that the interests of the child, not the rights of aspiring adoptive parents, are to be the paramount consideration. The primacy of the individual child’s interests in a particular adoption case should, therefore, never be diminished by considerations of general social policy.
[104] However, in considering the best interests of the child, the Court must be aware that adoption by a same sex couple may, in certain cases, be capable of causing problems for the child in terms of the way in which he or she perceives himself or herself as fitting into the community at large. To take an extreme hypothetical example, a same sex couple may be militantly hostile to the opposite sex in general and their circle of friends and acquaintances may be confined exclusively to members of their own sex. To permit the adoption of a child by such a couple would be as inimical to the child’s ability to develop normal relationships within the community at large as it would be to permit adoption of the child by a married couple with vehemently expressed homophobic beliefs.
[105] Accordingly, the Court will be concerned to see that adoptive parents, regardless of sexual orientation, have stable, supportive and balanced family and social relationships. The Court can then be assured that the adopted child will not be isolated, that the parents will be supported and that the child will be introduced successfully to social intercourse. This concern is not focussed upon adoptions by same sex couples: it [applies] equally to all adoptions.
[106] Doubtless the Court and the community will grapple for some time with the novelty of same sex couple adoptions. However, novelty does not justify the imposition of any special test for same sex couple adoption applications, nor does it warrant a specially cautious approach by the Court to such applications. That is because the Adoption Act prescribes only one test for all adoption applications: in the particular factual circumstances of every case, what is in the best interests of the child? The assessment procedures and the policies of the Adoption Act as they presently stand are perfectly adequate to ensure that, regardless of sexual orientation, only those who are able to promote the best interests of the child will be approved as adoptive parents.”

Submissions of the Parties

I was helpfully provided with written opening outlines from the various parties.

The plaintiff

The plaintiff submits, which is not controversial, that all formal requirements under the Act have been met. I need not rehearse them here but they are set out in paragraphs 3 to 13 inclusive of those submissions.
The plaintiff also submits that I should dispense with the birth parents’ consent because it is in CJD’s best interest to do so. Shortly put, it is submitted that CJD has been in long term care since birth and although both birth parents have a significant role in CJD’s life neither parent has been in the position of parental responsibility for CJD. Further that the proposed adoptive parents are the only family that CJD has ever known.
The plaintiff correctly submits that the Court must be satisfied according to section 90 of the Act which again reflects the best interests of the child. The plaintiff submits that CJD has been in the care of the Minister since she was four days old and her physical, emotional and educational needs have been consistently met. The plaintiff recites much of the history to which I refer below in greater detail. The plaintiff emphasises the fact that CJD should be seen as a special needs child, possibly as the result of being exposed to drugs in utero and possibly including some genetic factors relating to the parents respective diagnosis. Reliance is placed on the report of Ms S (CB 65).
Detailed references are then made to CJD’s religious identity and to religious and cultural background which again I deal with in some detail below. The plaintiff points out that Ms S’s recommendation in relation to CJD’s religious and cultural heritage focusses on the best interests of the child and is a real and practical assessment of the most appropriate role of religion in CJD’s life. Notwithstanding reservation the plaintiff submits that Ms S’s view (which again is uncontroversial) is that CJD’s best interest is to remain in the long term care of the proposed adoptive parents, and that adoption is the best option. Therefore, it is submitted that section 8(2)(c) is satisfied.
The plaintiff accepts that CJD has developed an important and positive relationship with the birth mother and the birth father through contact. The plaintiff again relies upon Ms S whose observation during a contact visit was that neither parent represented a psychological parental figure for CJD. It is submitted that section 8(2)(f) be satisfied.
The plaintiff submits that the proposed adoptive parents are dutiful and capable individuals who are well able to provide for CJD’s emotional, intellectual and cultural needs. Further, the plaintiff relies upon Ms S to support the proposition that the proposed adoptive parents as a same sex couple are a committed, loving and stable couple with their own strong family and professional networks. The plaintiff submits that Ms S identifies that the parenting challenges for same sex couples are similar to those for heterosexual couples but notes that same sex couples may also have to address challenges arising from prejudice in the community.
The plaintiff additionally points out that the Adoption Act prescribes only one test for all adoption applications: in the particular factual circumstances of every case the paramount concern is the best interests of the child. The plaintiff submits in this case the evidence of positive attachment to the proposed adoptive parents is compelling and that the adoption application is made in circumstances where the proposed adoptive parents are the only parents that CJD has ever known.
In terms of section 8(2)(k), the plaintiff submits that the only real options are adoption or maintenance of the status quo. The plaintiff submits that it is not in CJD’s best interests to maintain the status quo over an adoption order. The plaintiff submits that the beneficial impact of adoption is that a child has the security of being raised in a legally recognised family rather than remaining a state ward for the duration of childhood and that a child’s legal status is brought into conformity with reality. If the proposed adoptive parents merely have an order for parental responsibility the plaintiff submits this would not allow for the child’s legal status to be brought into conformity with that reality.
The plaintiff submits that neither birth parent has sufficient capacity to parent. These matters are dealt with below in greater detail in the context of the evidence.
The plaintiff also submits that the maternal and paternal adoption plans (as amended at 9 November 2016) are in CJD’s best interests, proper in the circumstances and should be registered.
In conclusion, the plaintiff submits that the making of an adoption order is in the best interests of CJD and clearly preferable to any other order that could be taken.

The birth mother

The birth mother opposes adoption and further submits that it is not in the best interests of CJD to dispense with her consent to such an order. Instead the birth mother seeks restoration of CJD to her care.
It is submitted on behalf of the birth mother that her plan for restoration need not be set out in complete detail. Nor is it necessary for her to include the method of transition or how to attend to any specific needs of CJD. It is submitted for the birth mother that it is sufficient to establish that there is a realistic possibility for restoration.
The birth mother submits that if restoration does not occur in her favour, as an alternative, she supports the birth father in his application. Otherwise she supports as I understand it, long term care with the proposed adoptive parents.
The birth mother submits that she has not taken any illicit drugs since at least 2012 other than marijuana on one occasion. It is submitted that she has provided urine analysis results. She has also attended parenting courses. She has had positive contact with CJD and there has been no indication that she has been affected by drugs or alcohol.
She attends Narcotics Anonymous (‘NA’) and Alcoholics Anonymous (‘AA’). She has attended community restorative centres and has seen a clinical psychologist. She has a great deal of support from friends and although not in a relationship with the father, she maintains a workable friendship with him. They remain friends and speak about matters concerning CJD.
The birth mother submits she has a great relationship with her daughter and she is in stable accommodation although she concedes that if CJD is restored to her that will have to be changed to larger premises.
The birth mother submits that CJD’s carers do not respect her cultural background which is that of a practising Catholic. Further she submits that if an order for adoption is made CJD would have no ability to understand or be involved in the Catholic religion. In the ultimate, the birth mother submitted that making adoption orders would fail to recognise CJD’s Catholic heritage and deny CJD an ability to have a connection with Catholicism.
She submits mere exposure to the Christian faith or other arrangements suggested by the proposed adoptive parents do not acknowledge any distinction between the Catholic faith and different Christian faiths. She also did not appear to accept the proposed adoptive parents’ suggestion of exposing CJD to Catholic bible stories and attendance at Catholic scripture classes as sufficient.
The birth mother raised an objection to the adoption proposal, in part, on the basis that the proposed adoptive parents are a same sex couple. This is consistent with her understanding of the teaching of her religious faith. As the carers know of that objection it is submitted that this cannot be conducive to an effective ongoing relationship between the carers and the birth mother and/or the birth father if an adoption order is made. However, it is not submitted that the carers do not have a loving and committed attitude to CJD.
The birth mother submitted in general terms that the attitude of the carers would make it difficult for them to commit to fostering CJD’s relationship with her birth parents.
The birth mother conceded that if the Court did not make an adoption order CJD was likely to continue at her current placement and further that there is no evidence that her carers would refuse to care for her. She submitted that a parental responsibility order is a less permanent solution in that it did not permanently sever the legal bond between CJD and her mother and father. Such an order would enable CJD to sustain and develop her relationship with her birth parents.
The birth mother therefore opposes any change to CJD’s name.

The birth father

The birth father appeared unrepresented throughout the hearing, although opening written submissions had been prepared by Counsel who had been earlier retained. It is unnecessary for me to repeat those in detail here as they largely mirror the submissions made by the birth mother. There are some important differences.
However, the birth father recognised that CJD has an attachment to each of the proposed adoptive parents and no longer holds the view that their status as a same sex couple could have a negative impact on CJD. Indeed, he accepts that the proposed adoptive parents have the capacity to care for CJD as they have done since September 2013.
The birth father’s principal concern is that he has never been given a chance to parent CJD, who was placed in the Minister’s care four days after her birth due to the birth mother being identified as a risk to CJD because of her manslaughter conviction and poly drug dependency. The birth father denies that he lacks insight into any risk posed by reason of these circumstances surrounding the death of her first child and points to the fact that he terminated their relationship on or about 16 January 2013 so that he could pursue restoration of CJD to his care. He says his position in life has improved considerably since then.
The birth father submits that he is managing his mental health issues adequately. He lives in a two bedroom unit. He is in regular employment and has a positive relationship with CJD which he wants to continue to develop.
The birth father submits that he should be the preferred choice for caring for his daughter as he will be able to meet all of her needs including her intellectual and emotional needs. He submits that it is not in CJD’s best interests for the Court to make an adoption order.
The birth father therefore opposes any change to CJD’s name.

The Evidence before the Court

The birth parents

Birth Mother

The birth mother relied upon three affidavits. One of 21 January 2016, the second of 20 May 2016 and the third of 14 June 2016.
Although admitting to previous drug use, in her first affidavit she asserted that she had not taken any illicit drugs since at least 2012. However, she accepted that the only time she had used drugs was in 2013 when she attended her aunt’s 50th birthday party. She became “very drunk”. She saw someone smoking what she believed was a cigarette and when she asked for one and was given one, it turned out to be marijuana. She asserts that she told Royal Prince Alfred Hospital and a urine test was done which detected marijuana present in her system (HR affidavit of 21 January 2016 [6]).
She also asserted that at one point she was sleep deprived and attended a doctor for the purposes of obtaining medication. The doctor prescribed valium. She was unable to inform her case worker of this event. She asserts that she did inform the supervisor of her case worker that she was not sleeping properly. She denies any suggestion that she was doctor shopping in order to obtain the prescription. She also denied not giving her GP a full history of her drug use when she first attended a consultation in 2010. She denied this and puts the inadequate history down to the limited time generally spent by general practitioners in consultation.
She said that she was not currently in a relationship with CJD’s father although they remain friends. She also asserted that CJD was very confused by having three mothers. CJD calls her “Mummy HR”. She also asserted that CJD indicated on one contact visit that she wanted to stay with her, by implication, indefinitely.
She has attended a number of courses at various places including the Royal Prince Alfred Hospital. She attends NA and AA meetings.
In relation to the death of her first child JR she accepted that she was found guilty of manslaughter and went to prison. She said, however, “It was alleged that I administered the methodone to my son. I still maintain that it was my then partner and that I failed to protect my son as I was using drugs at that time. I was punished by the legal system but not a day goes by that I do not think about my child and feel sorrow”, [19].
On the question of religion she stated that she is a practising Catholic and that she is not comfortable with placement of CJD with the proposed adoptive parents because of her upbringing and religious values. She complained about CJD not being able to wear a gold chain and cross and asserted that there was hostility between herself and the carers. She wants CJD to be christened in a Catholic Church and brought up as a Catholic. She accepts that she has some behavioural problems which led to a change in child care placement.

Ms RN observed that in relation to the manslaughter charge, the birth mother was sentenced on the basis that despite her constant protestations to the contrary, she was the only person who could have administered the drug to her son JR. Ms RN expressed the view that her intention was not to harm JR but rather to quieten him and that she was assessed as responding to a period of stress and being unable to cope with the stressors (Ms RN report [106]).
Ms RN described the birth mother as having a complex background with her own child protection history raised by a family of declining fortunes ridden with violence and emotional instability (Ms RN report [114]). Ms RN expressed the view that the birth mother appeared to have been “scapegoated” by her family as she was identified as the “patient” of the family (Ms RN report [114]).
Ms RN expressed the view that the birth mother’s psychometric testing was entirely consistent with her interview material. She stated that the birth mother was self aware, had intense and unstable relationships, had poor self identity, poor self esteem and unruly emotions. However, she had developed a life of purposeful activity and self development and as a result of attending a number of parenting programs she has shown “some insights” into her adult function ( Ms RN report [117]).
Ms RN expressed the view that if the Children’s Court assessment had taken place now, restoration would likely be recommended with a number of additional recommendations including ongoing work on her understanding of the trauma of her own childhood and drug monitoring (Ms RN report [121]).
However, Ms RN made it abundantly plain that the assessment of the birth mother did not take into account the ‘real’ four year old CJD and her current needs. She expressed the view that an assessment of her attachments must be paramount in any recommendations and that was beyond the remit of her assessment. Additionally, her assessment did not take into account what she described as the very real problem of cultural mismatch between the birth family and the proposed adoptive family. Again, that was also in her view beyond the remit of her report (Ms RN report [122]).

The joint expert report

I directed that the experts confer and provide a joint report and attend for cross examination. They provided a joint report dated 28 October 2016.
As a result of their meeting, the experts did not identify any areas of disagreement between them. On the birth mother’s history of drug and alcohol use and criminal history, both experts agreed that she had a long history of alcohol and drug abuse and a criminal history. While these issues were significant at the time of CJD’s removal and the failed restoration plan, the experts agreed that she had worked hard to overcome her problems.
The clinical impression of the birth mother formed by both experts was that she had started to develop some insight into and had made significant improvements in her mental health functioning. Both experts agreed that she had made a good start on this but still needed more work so as to continue to improve. The results of Ms RN’s testing expressed that there was still significant personality issues, but that for the last two years they did not appear to impinge upon the stability of her mental health.
On the psychometric testing undertaken by Ms RN, although Ms S did not conduct any such personality tests, she did not disagree with Ms RN’s interpretation of her results which disclosed self awareness but “intense and unstable relationships with poor self identity, poor self esteem and unruly emotions”.
On the birth mother’s capacity to have insight into the emotional, intellectual, physical and psychological needs of CJD, Ms S expressed concerns about her capacity to cope. Ms RN acknowledged that she did not see CJD or observe her with her birth mother but from her assessment of the birth mother her view was that there would need to be considerable support provided to her in relation to her own history of trauma and the impact that this would have on parenting CJD. Ms RN thought that the intervention required would have to be intensive so as to enable the mother to understand CJD’s needs.
In relation to the mother’s request that the child should be restored to her care both experts agreed that CJD’s attachment needs to be paramount and should be the primary concern to be considered in relation to a decision concerning restoration versus adoption. The experts further agreed that it would not be in CJD’s best interests for her current attachments to be broken.
On CJD’s religious and cultural identity and the birth mother’s request that CJD be christened, both experts were of the view that the issue should have been resolved at the time of the initial long term placement. At the current time, they regarded attachment issues as more significant for CJD’s psychological health than the issue of maintaining her birth parents’ cultural and religious backgrounds. The experts agreed that from a child focussed perspective attachment overrode cultural concerns.
The experts also agreed that the amount of contact should not be reduced to post-adoption and should remain at a minimum of 6 times a year. They also thought that it should be possible for additional, informal contact around CJD’s birthday and other special events.
During the course of the hearing, a further issue arose in respect of which the experts conferred. The application before the Court seeks to have CJD given the combined surname of the adoptive parents. As a result, a number of assumptions were put to the experts concerning the proposed name change and the importance of it to CJD as well as any additional issues that the experts might see as arising.
I permitted a short adjournment of the proceedings so that these assumptions could be drawn up and the experts given an opportunity to confer. When the matter resumed, Ms S, who was already being cross examined was asked specifically what she and Ms RN’s views were in relation to the various questions posed.
On the question of the importance of CJD having the same surname as the proposed adoptive parents, Ms S noted that in keeping with the principles of stability and psychological identity, it was important for CJD to see herself as an integral part of the adoptive family. Although it was not essential to have a change of surname, in their view it was preferable for that to occur.
The next question was the importance of CJD retaining D as her surname. Ms S indicated that the experts view was that although retention of her current surname would help her maintain her identity with the biological family, this was of less value for CJD going forward than her identifying with the adoptive couple. The experts concluded that retaining the current surname would meet the needs of the birth parents more than it would CJD going forward.
The third question related to whether there were any perceived issues arising from the use of a double barrelled surname in the circumstances. Neither experts saw any problems from a psychological point of view with a double barrelled surname.
The final question posed was whether in the circumstances it was in CJD’s best interests for her surname to be changed. The experts were of the view that although it was not essential they believed it would be in CJD’s best interests in the context of adoption to have the surname as proposed in the application.

Cross examination of the experts

In cross-examination, Ms S was asked her view about CJD’s needs and she expressed an opinion that an assessment should be made of CJD as soon as possible by an occupational therapist and a paediatrician (T 195/15-20).
Ms S’s view was that regardless of the birth mother’s capacity and given CJD’s age there was no realistic possibility of restoration to her care. Ms S adhered to the view that it was too long a period to enable her to be cared for by the birth mother as she has never been in her care and she had a psychological attachment to the proposed adoptive parents (T 196/8-33).
Ms S confirmed her view that Barnardos consideration of cultural and religious issues were not addressed appropriately although she was unaware that Barndardos had identified two Catholic families neither of whom in the end were prepared to take CJD (T 201/4-35).
Ms S reaffirmed that CJD going to Catholic scripture classes would help to address in part the cultural or religious issues. She believed it would not be a requirement for CJD to be christened in order to go to Catholic scripture classes (T 203/5-34).
Ms S also confirmed that she supported adoption because she believed it would provide a level of stability for CJD as she would legally be part of a family and because it would remove the risk of any further applications. She also felt it would remove the stigma potentially attached to the carers and it would remove the need for supervision by an outside agency (T 205/5-21). Further, she felt that in the absence of an adoption, even if CJD remained with the proposed adoptive parents it was none the less an insecure environment because a section 90 application could be made at any time before the Children’s Court. It was put to her that in relation to such an application the chances of it occurring would be minimal (T 2015/40-44). The witness thought the chance of leave being given to proceed might be minimal but she was unable to indicate any view on the chance of such an application being made (T 206/10-15).
It was put to Ms S that it would be important for CJD to continue to retain her father’s surname. She did not agree with that proposition. She did not agree that a name change would unsettle CJD. She said that children often change names when they are adopted and most children celebrate that change because they understand that as being part of the adoption process and being part of a family (T 216/4-45).
Ms S confirmed that she thought that a change of name in accordance with that which was requested, although not essential, would be in CJD’s best interests because it would strengthen her identification with the adoptive family (T 2175/20).
Ms RN was also cross examined. Before this occurred, Ms RN confirmed that she shared Ms S’s opinion as to the various questions concerning the proposed changes to CJD’s surname (T 222/224-30).
A number of assumptions were put to Ms RN about the mother’s use of cannabis and in particular her denial of having done so in December 2013. Upon those various assumptions, Ms RN agreed that it would indicate a lack of insight on the part of the birth mother into the link between drug use and parenting capacity. However, Ms RN thought the link would be more tenuous if the child was not in fact in her custody at the time. Further, she indicated that she would be concerned when assessing parenting capacity upon those assumptions (T 226/40-50). She would also be concerned about the birth mother’s commitment to recovery if in fact she had falsely denied such activity (T 227/1-5).

Final submissions of the parties

The plaintiff

In short, the plaintiff submits adoption is clearly preferable in CJD’s best interests. It is submitted CJD knows no other family and the proposed adoptive parents have and will continue to provide a stable and loving environment for CJD, restoration is unrealistic and an adoption order will provide a sense of security to CJD and her proposed adoptive parents (T 243).
The plaintiff also submitted that Barnados did all it could have done to place CJD with a Catholic family however eventually CJD was placed with a family that will best care for the totality of her needs (T 233). The plaintiff asserted that the proposed adoptive parents were, and continue to be, the “most appropriate match” for CJD (T 233).
The plaintiff submitted that it was not in CJD’s best interests to be christened if she was adopted, especially because the proposed adoptive parents would not be able to facilitate her involvement and development with Catholicism due to their sexual orientation (T 237). However, the plaintiff argued that the proposed adoptive parents “take seriously the religious and cultural heritage of CJD” (T 235) and that evidence of their willingness to ‘facilitate’ CJD’s involvement with the Christian faith should be accepted (T 235). The plaintiff highlighted the birth mother’s “lack of insight” (T 237) into the proposed adoptive parents’ situation and the immense difficulty they would face in even attempting to raise CJD as a Catholic (T 237).
In relation to the restoration orders sought by the birth parents, the plaintiff submits that neither has the capacity to care for CJD. The plaintiff submitted that the birth mother was an unreliable witness, who refused to accept responsibility for her past criminality and had a long history of drug use, even during CJD’s pregnancy (T 239-240). Further, that the birth mother had no viable restoration plan, and the fact that CJD had not yet been restored to her care was no excuse for this (T 241). On this basis, the plaintiff argued that restoration was not in CJD’s best interests. Similarly, the plaintiff asserted that restoration to the birth father was not in CJD’s best interests because he had limited parenting capacity due to his work commitments and personal mental health issues that were not yet adequately managed (T 242).
In relation to the proposed amended parental plans, the plaintiff argued they should be accepted because they were supported by both experts and provided an appropriate minimum level of contact with the birth parents (T 233).
The plaintiff also submitted that the name change should be ordered because the experts verified that it was in CJD’s best interests and it accords with the name of the proposed legal parents which authority suggests should be preferred (T 233-234).

The birth mother

The birth mother continued to seek that CJD be restored to her sole care (T 245). She submitted that whatever problems she has had in the past have been resolved (T 245-248). In particular, that she is free of the use of illicit drugs, although she takes daily medication (T 245).
In the event that she is unsuccessful in having CJD restored to her, the birth mother supports restoration to the birth father (T 249). She opposes any order for adoption or the orders sought as a consequence of any adoption if made (T 249-250). She likewise opposed the name change because the proposed adoptive parents had not yet changed their own surnames to ‘H-L’ and that ‘D’ was the only surname CJD presently knew (T 250).
The birth mother did not oppose long term care by the proposed adoptive parents.

The birth father

The birth father’s primary position was to support the mother’s application for restoration to her sole care. In the alternative, the birth father sought restoration to his sole care. He submitted that he is gainfully employed, with a regular income and has a large enough house to support CJD if she were to live with him (CD written submissions 1). He also asserted that he wanted the chance to care for her because he was deprived of the opportunity to be a father (CD written submissions 1, 2). He also believed he would be able to obtain outside professional and familial support, which will assist him in caring for CJD on a full-time basis.
Like the birth mother, the birth father opposes the proposed adoption and again any consequential orders sought by the plaintiff (CD written submissions 1). He sought to have his daughter raised a Catholic, as he believed the “church…will help her later in life” (CD written submissions 1). As an alternative, the birth father does not oppose long term care by the proposed adoptive parents.

Consideration

For the reasons which follow I am of the view that adoption is clearly the preferred course, along with the proposed name change. It would follow that I reject the applications for restoration by both the birth mother and the birth father. It follows I also reject any long term care plan.
In passing I note the experts, in substance, do not support restoration or long term care and instead favour adoption. Although they believe it is not essential, they also support a name change for CJD.
Strictly speaking I am not bound to accept the expert evidence. However, I am in entire agreement with them. They were both informed and highly experienced and each has, from somewhat different vantage points, thoroughly examined the issues and come to similar conclusions. I accept their opinions.
Unaided by them I would not have come to a different view upon all the evidence having had the opportunity of seeing each of the relevant major participants.
It is important that I deal with the various participants but one thing is clear, each of the birth parents and proposed adoptive parents love CJD very much. I am satisfied each has a genuine desire to parent her. Upon all of the materials and having considered the available evidence carefully in my mind there can only be one result, as I have already indicated.

The birth mother

The birth mother has a long history of illicit drug use. On one view of the evidence, the last time she used cannabis was by accident in January 2013. However, materials which she herself put before the court (without any explanation or qualification) disclosed cannabis being detected in her system in December 2013. When confronted with this situation, she asserted that she had been told by a person at Royal Prince Alfred Hospital that the result was a false positive. I find that difficult to accept. She must have been acutely aware of the importance of being able to show a significant period during which she had not used drugs. She or the person who assisted her to prepare the affidavit must have been alive to that issue. To put such materials before the Court without qualification or explanation is in effect tantamount to a concession that she had tested positive in December 2013 and had no explanation for it. Her position when challenged was highly questionable. If this was however the only matter, clearly it could not be regarded as determinative in the circumstances.
I regard the birth mother’s proposed plan for CJD’s restoration as vague and entirely unsatisfactory. Her employment situation is by no means secure. When she gave evidence before me she was about to start employment as a cleaner. As I understood her evidence, although she could make specific requests, she would have little if any control over the shifts that she would be offered. She asserts she had recently completed courses which would enable her to obtain employment in the hospitality industry. The wisdom of pursuing employment either in a hotel or casino environment could in my opinion place a good deal of pressure upon her to revert to old habits, especially in relation to alcohol or drug use.
In any event, although she has made consistent and genuine steps towards rehabilitating herself, there are clearly unresolved issues. In addition, both experts have doubts about her ability effectively to parent and agree that she would need considerable ongoing support.
To my mind, of considerable significance is her unwillingness or inability to face the harsh reality of her role in the death of her son, JR. She denied her involvement at her criminal trial. On the evidence available the trial judge had no reasonable doubt about her responsibility for her son’s death. However, she has simply never faced up to this reality. She has persisted over the years, even when giving evidence before me, in blaming her then partner as the person responsible for the administration of the relevant substances to her son. She made the same assertion to Ms S and Ms RN when they interviewed her. Her resistance to facing up to this reality, whatever its true cause, poses a real risk in my mind to any child for whom she might be given sole care. It seems to me that she has suffered a deep trauma which she has simply been unable or unwilling to confront.

CJD has exhibited some behavioural problems which may or may not lead to any diagnosis. Many young children can be difficult to handle. Notwithstanding her significant advances, the stress ahead for what at least for now would be a working single parent with many unresolved issues would be on its own a risky venture for CJD but equally for the birth mother.
However, equally important is CJD’s psychological attachment to her proposed adoptive parents. In substance, the experts agreed that she has been with them for a significant period. Ms S’s view is that it is too late to change the situation now without considerable trauma to CJD. Ms RN is in effect of the same opinion. Again I accept that evidence.

The birth father

I have no doubt that the birth father loves and cares greatly for his daughter. He conducted his case with courtesy. However, he in my mind is equally incapable of caring for CJD. Again his plan for restoration lacks reality and is equally inadequate. He clearly needs ongoing monitoring of his mental health issues, although he has been stable for some little time. He is not currently under the care of a psychiatrist nor does it appear a psychologist, which raises concerns about the stability and monitoring of his mental health in the future. Mr M J is no longer available to him and apart from a GP there is no one objectively to monitor his condition should it be required.
His employment history has been rather haphazard, and it seems that even now, the unpredictability and extent of his work commitments would clearly prevent him from providing adequate, full time care for CJD. These issues are compounded by the fact he is an undischarged bankrupt because of an unsuccessful business venture. That to one side, the capacity of a man in his position with his issues would make it difficult if not impossible for him adequately to parent a small girl on his own, especially if her behavioural issues require attention and monitoring.
In addition but importantly, in siding with the birth mother in her stance that she was not responsible for her son’s death, in my mind very much calls into question his judgment and his independence. In one sense his ongoing support for the birth mother in relation to her claim for restoration is laudable but it raises in my mind a very real question of whether he could or would be able to intervene if things go awry with the birth mother. To place CJD in his care would in my view likewise pose a risk for CJD which I regard as unacceptable.

The adoptive parents

Both women are intelligent, caring and are in a stable relationship. They have been together since 2008. I believe the most significant feature of their relationship is that both share a deep love for and understanding of CJD. Ms S observed that this is reciprocated by CJD, who has a psychological attachment to both women. They are financially secure and it seems they are secure in themselves.
The expert evidence is that neither birth parent has adequate or sufficient parenting capacity solely to care for CJD, whereas there is simply no doubt on the evidence before me as to the parenting capacity of the proposed adoptive parents. That assessment clearly comes from various Barnardos case workers but most importantly from Ms S. Indeed both experts it seems to me favour adoption over any other alternative and each recognises the paramount importance of CJD’s psychological attachment to the proposed adoptive parents.
The proposed adoptive parents are in my view realistic women of undoubted integrity. They have been frank from the very outset about their attitude to religion and especially their concern about the Catholic Church’s attitude to same sex couples. That candour has exposed them to added stress but speaks volumes about their strength of character.
The Court’s paramount concern is for the best interests of CJD in all the circumstances. The Act requires cultural and religious ties to be preserved “as far as possible”. That clearly does not mean they can be ignored but it also means that they should not predominate if in some way they cannot be accommodated alongside what might otherwise be the best interests of the child. Religion of course is only one of a multitude of factors the Court is to consider in determining CJD’s best interests. I accept the proposed adoptive parents will facilitate CJD becoming familiar with and potentially involved in the Catholic religion if she desires. I also accept the proposed adoptive parents will in good faith continue to actively explore CJD attending Catholic scripture classes.
In my view, in all the circumstances, it would be unthinkable to break the strong psychological attachments CJD has formed with the proposed adoptive parents simply to accommodate the birth parents’ religious preferences. That would not be in her best interests. In my mind, it is vital that these attachments be preserved not only for her current stability but also for her ongoing wellbeing.
There is nothing stopping either birth parent from appropriately and in good faith introducing Catholic concepts to CJD and for that matter, Catholic ceremonies. While the birth parents’ religious beliefs must be respected, the proposed adoptive parents’ attitude to the Catholic faith requires equal respect.
In the course of proceedings, much was made about whether or not the joint names of the proposed adoptive parents should be the new surname for CJD. The expert evidence is that a change of name, although not essential, would not be harmful. More to the point, the experts effectively concluded that a name change was desirable. It would reinforce the new legal compact between the proposed adoptive parents and their daughter. I consider it appropriate again in CJD’s best interests.
The birth parents will always be that. Although they will not have what each has sought, they will have continuing contact with CJD pursuant to the parental plans. Those parental plans can be changed by mutual agreement. In the event of some impasse being reached the plans can always be reviewed by this Court. As loving birth parents, I would expect notwithstanding the obvious limitations, they will do their level best to put CJD’s interest first at all times and their own views and/or prejudices very much second. The quality of the relationship each birth parent enjoys with CJD in the future is entirely within their respective hands. How she comes to know them and her attitude towards them will be a direct reflection of the honesty and integrity they display towards her and more importantly themselves in the forthcoming years. At the appropriate time she will, and will want to, make her own choices whether they are religious, political or otherwise. Each of the participants concerned, including the proposed adoptive parents, will play a role in her evolution so as to ensure she makes appropriate and informed life decisions.
I conclude by observing that there has been some criticism of Barnardos (some of it from the agency itself) about the lack of a clear cultural or religious plan. While such action is highly desirable in every case I am satisfied here that Barnardos did set out to match CJD with an appropriate Catholic family. In the end that choice was, to some extent, taken out of their hands. I think there is a real question in practical terms as to how long an agency keeps a child in an interim position as it were hoping that an ideal situation will arise. Ultimately, in the real world practical choices have to be made.
In all the circumstances, in my view, I should make each of the orders in the Further Amended Summons.

*******

Decision last updated: 20 March 2017

Medium Neutral Citation:	Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926
Hearing dates:	24, 25, 26 October, 9 November 2016
Date of orders:	21 November 2016
Decision date:	21 November 2016
Jurisdiction:	Common Law
Before:	Sackar J
Decision:	See paragraph [391]
Catchwords:	EQUITY – adoption – whether adoption by the proposed applicants will promote the welfare of the child – whether dispensing with the birth parents’ consent is in the best interests of the child – whether the best interests of the child will be promoted by the making of an adoption order and preferable to any other action that could be taken by law in relation to their care – whether the Paternal and Maternal Adoption Plans should be registered – whether the court should order the child’s surname to be changed
Legislation Cited:	Adoption Act 2000 (NSW) Adoption Amendment (Same Sex Couples) Act 2010 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	Adoption of BS (No 3) [2013] NSWSC 2033 Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of SVS [2015] NSWSC 2043 Application of A - re D [2006] NSWSC 1056 Application of A; Re D (2006) 36 Fam LR 142 Deputy of Community Services v D (2007) 37 Fam LR 595 DFaCS (NSW) and Abbey [2013] NSWChC 3 Director-General, Dept of Community Services v D & Ors (2007) 37 Fam LR 595; [2007] NSWSC 762 Re Adoption of RCC [2015] NSWSC 813 Re H (Adoption: Parental Agreement) (1982) 3 FLR 386 Re JLR [2015] NSWSC 926 Re O (Contact: Imposition of conditions) [1995] 2 FLR 124 Re: William and Jane [2010] NSWSC 1435 W (A Child) [2016] EWCA Civ 793
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia (plaintiff) H R (first defendant) C D (second defendant)
Representation:	Counsel: T Stevens (plaintiff) C Sperling (first defendant) Self-represented (second defendant) Solicitors: Crown Solicitor’s Office (plaintiff) Self-represented (second defendant)
File Number(s):	A87 of 2015
Publication restriction:	anonymised for publishing